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[2012] ZAFSHC 236
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De Sousa v S (A231/2012) [2012] ZAFSHC 236 (13 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Appeal No.: A231/2012
In the appeal between:
ALBERTO A DE SOUSA
..............................................................
Appellant
and
THE STATE
...............................................................................
Respondent
CORAM:
LEKALE, J
et
THAMAGE, AJ
JUDGMENT:
LEKALE, J
_______________________________________________________
HEARD ON:
22 OCTOBER 2012
_______________________________________________________
DELIVERED ON:
13 DECEMBER 2012
_______________________________________________________
[1] On the 11
th
June 2010 the appellant was convicted by the regional court sitting
at Welkom on 2 counts of indecent assault and 1 count of rape
as
defined by the Criminal Law (Sexual Offences and Related Matters),
Amendment Act 32 of 2007 (“the Sexual Offences Act”).
He
was, thereafter, sentenced to 5 years, 10 years and 15 years
respectively on the counts in question on the 27
th
September 2010. It was directed that the sentences should run
concurrently with the result that the appellant currently serves
an
effective term of imprisonment of 15 years.
[2] The appellant feels
aggrieved by the convictions and sentences and now approaches this
court on appeal against the same following
the decision of the
Supreme Court of Appeal effectively granting him leave to appeal to
this court. On convicting the appellant
the trial court accepted the
evidence tendered in support of the charges and rejected the
appellant’s version as not reasonably
possibly true. The court
below generally found that the complainant, who was 12 years of age
when she testified, could not have
had the imaginative capacity to
describe ejaculation or the spitting out of semen because of her
tender age at the time of the
sexual abuse.
[4] The trial court
further accepted the opinion of the forensic social worker to the
effect that the complainant could not reasonably
possibly have
fabricated the incidents of sexual abuse in question.
[5] In respect of the
rape charge the parties are
ad idem
that there is no
prima
facie
evidence that the incidents relied upon in support of the
same occured after the coming into operation of the Sexual Offences
Act
on the 16
th
December 2007. We are in respectful
agreement with the parties in this regard in so far as the
complainant was not sure of the
dates and, in particular, testified
that she was not certain if any such incidents of sexual abuse
happened in 2008. She, however,
testified that such incidents
happened in 2009 when she was in Grade 5 at school which is not
likely because she had already reported
the incidents to her mother
and the police on the 13
th
December 2008. Her evidence in
the main was effectively that the last incidents occurred before the
verbal altercation and stand-off
her parents had with the appellant’s
household which, according to her mother, lasted for about 9 months.
After the stand-off
in question she resumed her visits to the
appellant’s house and nothing in the nature of sexual abuse
occurred then.
[6] When sentencing the
appellant the trial magistrate found that there was a certain amount
of planning that took place on the
part of the appellant as well as
the grooming of the child concerned. The trial court, further, found
that the seriousness of the
offences aggravated as time went by and
held that the gravity of the offences justified imprisonment.
[7] Both in the heads of
argument and submissions before us Mr Nel, for the appellant, points
out contradictions in the complainant’s
evidence as well as
between her evidence and that of her mother and the forensic social
worker. He, further, concludes that the
trial court did not approach
the relevant evidence with caution and that such evidence was not
satisfactory in material respects.
[8] On behalf of the
state, as the respondent, Mr Harrington supports the convictions on
indecent assault charges but concedes that
15 years imprisonment is
not appropriate and proposes 8 years as being more appropriate.
[9] Mr Harrington
contends that the court
a quo
was steeped in the atmosphere of
the trial and applied cautionary rules correctly. He submits that
contradictions
per se
should not result in the rejection of
the relevant evidence and that the weight to be attached to such
contradictions depends on
the nature, number and importance of the
same as well as their impact on the other parts of the witness’
evidence.
[10] The contradictions
relied upon by the appellant in his contentions should, in our view,
be seen in the light of the totality
of the evidence regard being had
to the child complainant’s evidence to the effect that the acts
complained about took place
over a period of time and at two
different places with each class of activities taking place more than
once. The indecent assault
in charge number 1 took place at her
paternal grandmother’s house on a number of occasions with the
appellant at times exposing
his private parts and inviting her to
kiss his stomach. The second class of incidents took place at the
appellant’s house
in the TV room on the couch and sometimes in
the bedroom on the bed when the appellant would, sometimes, put his
private part in
her mouth. On certain occasions the appellant would
ejaculate in the process. The appellant and his wife used to buy her
clothes
and, further, used to give her presents.
[11] The evidence of the
forensic social worker should, in our view, also be seen in its
proper context in that it was not tendered
as the evidence of a
report witness. Its relevance and value lie in the multi-dimensional
forensic framework employed to test the
veracity of the child’s
claims of sexual abuse. The forensic social worker testified as an
expert and expressed an opinion
to the effect that it was highly
unlikely that the child was fabricating the story about sexual abuse
because she,
inter alia
, gave reliable sensory information
without being aware thereof and without making a conscious effort to
relay the same.
[12] Any discrepancies
between the evidence of the child and that of her mother, in our
view, deserve to be looked at in the light
of the fact that the
mother’s testimony was to the effect that the child did not
tell her everything at once. The complainant
told her about
additional incidents in between the sessions the former had with the
forensic social worker. The appellant’s
defence, on the other
hand, was effectively a bare denial.
[13] As correctly
submitted for the respondent, the trial court’s acceptance and
evaluation of oral evidence can only be interfered
with in
exceptional circumstances and only if the court of appeal is
convinced, on adequate grounds, that the trial court was wrong
in
accepting the same (see
S v FRANCIS
1991 (1) SACR 198
(A) at 204C and
S v ROBINSON AND OTHERS
1968 (1) SA 666
(A) at 675G-H).
[14] We are not convinced
that the trial court erred in her appraisal and acceptance of the
child’s evidence. We are, in fact,
persuaded that she applied
the applicable cautionary rules properly. We can, as such, not fault
the convictions on the indecent
assault charges and are of the view
that the trial court was correct in rejecting the appellant’s
defence.
[15] Initially the
parties were apparently under the impression that the setting aside
of the conviction in respect of the rape
charge meant, as a matter of
course, that same fell to be replaced with a conviction on indecent
assault. The court, however, held
a different
prima facie
view
in the light of the fact that the appellant was not at risk of being
convicted of indecent assault when the matter was heard
and the
competent verdicts on the rape charge do not include indecent assault
and could only be applicable if the acts complained
about were
committed on or after the 16
th
December 2007. The parties,
therefore, requested and were afforded an opportunity to consider the
issue and, eventually, submitted
additional arguments on the same not
later than the 16
th
November 2012 as agreed.
[16] The parties hold
different views on the issue with Mr Harrington maintaining that it
would be competent and fair for the court
to convict the appellant of
indecent assault in respect of charge 3 because the court of appeal
is entitled to amend the charge
and to issue orders that the trial
court ought to have made in terms of the provisions of section 86
read with sections 309(3)
and 304(2)(c) and (iv) of the Criminal
Procedure Act, no 51 of 1977 (the “CPA”). Mr Harrington,
further, points out
that all the essential elements of indecent
assault are included in the said charge as it stood at the trial.
[17] Mr Nel, on the other
hand, contends that to convict the appellant of indecent assault
would amount to a substitution as opposed
to an amendment of the
relevant charge and the court does not have the power to substitute
one charge for another under the guise
of an amendment. In his view
the state has to live with the consequences of its decision when it
preferred a charge of rape as
opposed to indecent assault during the
trial.
[18] It is correct, as
the parties submit, that the court is competent on appeal to amend
the charge sheet in terms of section 86(1),
read with the provisions
of section 309(3) of the CPA (see
S v KRUGER EN ANDERE
1989 (1) SA 785
(A) at 795B).
[19] In an application
for an amendment of the charge sheet the question is whether the
proposed amendment is indeed an amendment
as opposed to a
substitution and, if the answer is in the affirmative, the next
enquiry is whether or not there is no prejudice
to the appellant (see
S v BARKETT’S TRANSPORT (EDMS) BEPERK EN ANDERE
1988 (1) SA 157
(A).
[20] As correctly
submitted by Mr Nel an amendment of the charge sheet should be
preceded, as a matter of fairness, by notice to
the accused advising
him of such an intention on the part of the court and affording him
an opportunity to make an input on whether
or not such a move would
prejudice him in his defence (See
S v GELDERBLOEM AND ANOTHER
1962 (3) SA 631
(C)).
[21] The issue in this
regard is whether a conviction for indecent assault as apposed to
rape would amount to a substitution as
opposed to an amendment. The
test for distinguishing between an amendment and a substitution is
whether or not the proposed amended
charge differs from the existing
one to such an extent that it amounts to another charge (see
S
v BARKETT’S TRANSPORT (EDMS) BEPERK EN ANDERE
supra
and
S v MOTHA
2012 (1) SACR 451
(KZP) at 455g - h).
[22] It is true, as
submitted for the state, that charge number 3 as it presently stands
contains all the elements of indecent assault.
[23] It is, further,
correct as effectively contended by Mr Nel that indecent assault is a
common law crime which existed until
the 16
th
December
2007 as a distinct and substantive offence separate from the common
law rape although it was a competent verdict on the
charge of rape in
terms of the CPA as it stood before that date.
[24] An amendment entails
the retention, to a great extent, of what is altered in the sense
that the charge, as amended, can still
be identified with the charge
in its original form as the Appellate Division found in
S v
KRUGER EN ANDERE
supra
at 796I.
“
Die
begrip “wysiging” veronderstel ‘n mate van behoud
van dit wat gewysig word. Indien ‘n voorgestelde ‘gewysigde’
aanklag glad nie meer met die oorspronklike aanklag identifiseerbaar
is nie, is daar dus nie sprake van ‘n wysiging nie,
maar wel
van ‘n vervanging.”
[25] Where the proposed
amended charge is in no way identifiable with the original charge
there is no amendment but a substitution
even if the new offence is
of the same nature as the offence described in the original charge
(see
S v KRUGER EN ANDERE
supra
at 796C –
J and
S v VAN WYK EN ANDERE
1994 (1) SACR 183
(NC).
[26] The issue, in my
view, relates to the substance or essence of the charge before and
after the proposed amendment has been put
forward. If the alteration
changes the charge so substantially that it constitutes a new charge
then the process is a substitution.
[27] The instant matter
is distinguishable, in my view, from
S v MOTHA
supra
where the court allowed, as an amendment, the insertion of words in
the heading of the charge sheet relating to rape in order to
read
that the charge was “rape in terms of
section 3
of the
Criminal
Law (Sexual Offences and Related Matters) Amendment Act, no 32 of
2007
”. The essence of the charge remained the same in that it
was still rape committed on the date and in the circumstances
referred
to in the charge sheet in its unamended form.
[28] In order to
appreciate the differences between the two substantive crimes
implicated in the present matter one may, in my judgment,
look at the
legal position prevailing before the 16
th
December 2007.
The criminal conduct attributed to the appellant did not constitute
rape and could only sustain a charge of indecent
assault prior to
that date. On that date such conduct got defined as rape by section 3
of the Sexual Offences Act and indecent
assault, as a crime, was
abolished.
[29] For the court to be
able to bring out a conviction on indecent assault under charge
number 3 not only must the dates be changed
from 2008 to dates prior
to the 16
th
December 2007 but the nature of the crime
should also be changed from rape to indecent assault.
[30] In a case where the
alleged conduct of an accused person constitutes more than one
criminal offence the practice, which is
legally permissible, sound
and acceptable, is to charge him specifically in respect of each such
crimes where appropriate or to
frame the charges in the alternative
to one another. (See section 83 of CPA.)
[31] In my judgment the
present matter is comparable to the facts in
S v BARKETT’S
TRANSPORT
supra
. In that matter the appellant had
transported goods which his permit did not authorise him to convey.
The applicable law proscribed
two conducts viz the transportation of
goods otherwise than with a permit and the conveyance of goods
contrary to the provisions
of the permit held by the accused. The
appellant was convicted of transportation without a permit and, on
appeal, the state sought
to amend the charge sheet in order to secure
a conviction on the crime of transporting contrary to the provisions
of existing permit.
This attempt was resisted successfully on the
basis that it amounted to a substitution of one charge for another.
[32] In my view, the
trial court could not have returned the verdict of guilty on indecent
assault because it was not a charge preferred
against the appellant.
The trial court could, further, not have amended the charge sheet by
adding indecent assault as an alternative
charge because that would
not have been legally permissible in terms of the provisions of
section 86 of the CPA. The court
a quo
would only have
returned a competent verdict of guilty on indecent assault if the
charge was common law rape. See generally
S v TUNGATA AND
ANOTHER
2004 (1) SACR 558
(Transkei) at 564H – J.
[33] There was no
application for amendment of the charge sheet and we cannot
mero
motu
amend the charge in order to return a verdict of guilty on
indecent assault in the circumstances of the instant matter for that
would amount to substitution as opposed to amendment.
[34] The Court of Appeal
may only interfere with the sentence imposed if the same is
disturbingly inappropriate or the trial court
did not exercise its
sentencing discretion reasonably or properly. See
S v PIETERS
1987 (3) at 717 (A) and
S v MALGAS
2001 (1) SACR 469
(SCA).
[35] We can find no fault
with the five years imprisonment imposed in respect of charge number
1 insofar as, in our view, the trial
court struck a healthy balance
between the appellant’s personal circumstances, the nature of
the offence and the interests
of the society. In this regard it is
clear that the appellant abused the trust reposed in him as the
child’s godfather and
paternal uncle who stood
in loco
parentis
vis-à-vis
the girl at the time of the
crime.
[36] We are, further, of
the view that the court
a quo
correctly found that the sexual
abuse involved increased in frequency and aggravated with the passing
time with the girl being
groomed by,
inter alia
, showering her
with gifts which also appreciated in value as and when the time went
by. In our judgment the abuse would have, most
probably, culminated
in rape in the common law sense as the child gradually got accustomed
to it and the number and value of gifts
increased.
[37] We are satisfied
that the 10 years imprisonment sentence imposed in respect of charge
number 2 is disturbingly inappropriate
and calls for an adjustment
from this court in the light of,
inter alia
, the appellant’s
personal circumstances as a first offender, a family man with two
minor children and his status in the community
as a generally
respectable figure as well as the fact that the complainant in this
matter did not sustain any physical injuries.
Ten years imprisonment
is a prescribed minimum sentence for indecent assault in a case where
the victim was under 16 years of age
and sustained some bodily harm
in the process (See Part III of Schedule 2 to
Criminal Law Amendment
Act, 105 of 1997
as it stood before the 16
th
December
2007).
[38] In our view the very
fact that the appellant has been found guilty of indecent assault of
his goddaughter is
per se
a punishment insofar as it degrades
him in the eyes of his peers. As Mr Nel correctly points out in
argument, the inclusion of his
name in the register of sexual
offenders also serves as a punishment to a man of the appellant’s
social standing and effectively
fulfils the objective of naming and
shaming him.
ORDER
[39] When all is said and
done we are convinced that the following is an appropriate order:
39.1 The appeal succeeds
in part in that the conviction and sentence in respect of charge
number 3 are set aside;
39.2 The conviction and
sentence in respect of charge number 1 are confirmed;
39.3 The conviction in
respect of charge number 2 is confirmed but the sentence in respect
of the same is set aside and in its place
and stead is replaced the
following:
“
Charge
number 2: The accused is sentenced to 7 years imprisonment.
The sentence in charge
number 1 shall run concurrently with the sentence herein with the
result that the accused shall serve an
effective 7 years
imprisonment.”
39.4 The sentence is
antedated to take effect from the 27 September 2010.
______________
L. J. LEKALE, J
I concur.
_________________
S. J. THAMAGE, AJ
On behalf of the
appellant: Adv. Nel
Instructed by:
E G Cooper Majiedt Inc
BLOEMFONTEIN
On behalf of the
respondent: Adv. W. J. Harrington
Instructed by:
Director of Public
Prosecutions
BLOEMFONTEIN
/eb